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[4] It was intended to be the final court of appeal for Australia, but that took many years to achieve, because appeals lay from the High Court to the Privy Council, and also because some appeals from the State Supreme Courts could go directly to the Privy Council, thus bypassing the High Court.
[5] The High Court’s position as the final court of appeal for Australia was established gradually. In the first place, part of the jurisdiction exercised by State courts, following Federation, was federal. The jurisdiction was invested in those courts by s 39(2) of the Judiciary Act 1903 (Cth), a condition of investment being that no appeal lay from them to the Privy Council. An early controversy between the Privy Council and the High Court about the validity of that condition was resolved in favour of the High Court’s view that the condition was valid.[1] There were, however, appeals from the High Court to the Privy Council. These were by special leave, but s 74 of the Constitution allowed the Commonwealth Parliament to make laws limiting the matters in which special leave could be granted. This was done by the Privy Council (Limitation of Appeals) Act 1968 (Cth) and the Privy Council (Appeals from the High Court) Act 1975 (Cth). That left only appeals from the High Court on inter se constitutional issues, but in those cases a certificate from the High Court was required under s 74. The provision for a certificate fell into a kind of constitutional desuetude: it was described as ‘obsolete’ by the High Court in 1985,[2] and I am sure it is now dead. The final avenue of appeal – that is, direct to the Privy Council from the Supreme Courts of the States exercising State jurisdiction – was abolished in 1986 by the Australia Acts.[3]
[6] The position, and public perception, of the High Court as an ultimate appellate court was reinforced by the abolition of civil appeals to it as of right. (Criminal matters always required leave.) This occurred gradually in relation to the courts of the States but was completed in 1984. Appeals from federal courts, or from the courts of the States when exercising federal jurisdiction, were already subject to this requirement. The consequence of the need for special leave was that (with presently immaterial exceptions) the High Court’s appellate jurisdiction became discretionary. It could choose the cases which it entertained, and thus influence the direction and pace of legal change. The principal criteria for determining whether to grant special leave were the general or public importance of the issue, how arguable the issue was, and whether the particular case was a suitable vehicle for its resolution.[4] The interests of justice were served by the fact that in cases not otherwise meriting consideration, the Court would grant special leave if apparent injustice warranted its intervention.
[7] The matters referred to above brought about profound changes in the way in which the High Court performs its appellate function. Because criminal and civil matters were on an equal footing, the proportion of criminal appeals taken increased. There are now few unimportant appeals, and every case is likely to bring about change, refinement or confirmation of an aspect of the law. The Court also regards itself as free to depart from its earlier decisions when appropriate, and to depart from earlier decisions of the Privy Council. The absence of appeals to the Privy Council has meant that the Court has felt more free to develop an ‘Australian’ view of the law: one which responds to the history and conditions of this country, rather than to those of the United Kingdom, or to a common denominator for the former Empire, or Commonwealth.
[8] The need for special leave means that the Court can control the number of appeals that it hears. There has been a very great increase, however, in the number of applications for special leave to appeal. Measures – such as prior written submissions, time limits for oral argument, two (rather than three) Justices sitting to hear applications, and additional special leave sittings – have been used to alleviate the problem, but the problem of the number of applications remains. It may be that in the end all special leave applications are dealt with on the papers, but this is not a popular course; it takes away the sense of the ‘day in court’ for clients, and oral argument on special leave applications can clarify facts and issues, and be decisive.
[9] A consequence of the requirement for special leave, of course, is that the intermediate appeal courts are the final courts for almost all cases.
[10] All courts in Australia are bound to apply the Constitution,[5] and in its appellate jurisdiction under s 73 of the Constitution, the High Court may, and does, deal with constitutional matters. Very often, however, constitutional matters come before it in its original jurisdiction, to which I now turn.
[11] The High Court’s original jurisdiction falls into two
categories: that which is conferred on it directly by the Constitution (and
which cannot be taken away by Parliament), and that which may be conferred by
Parliament. The former, entrenched, jurisdiction
is found in s 75 of the
Constitution, namely in matters:
(i) Arising under any treaty;
(ii) Affecting consuls or other representatives of other countries;
(iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
(iv) Between States, or between residents of different States, or between a State and a resident of another State;
(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
[13] The other source of the High Court’s original jurisdiction
is s 76, which
empowers the Parliament to make laws conferring original jurisdiction on the
High Court in matters:
(i) Arising under this Constitution, or involving its interpretation;
(ii) Arising under any laws made by the Parliament;
(iii) Of Admiralty and maritime jurisdiction; and
(iv) Relating to the same subject-matter claimed under the laws of different States.
[15] A significant part of the High Court’s work in its original jurisdiction is in hearing and determining constitutional questions, often in proceedings for a declaration of invalidity.[7] Whilst such questions could come before the Court exercising original jurisdiction under any of the paragraphs of s 75, some constitutional questions could not; an example being a claim by a resident of a State that a law of that State was a duty of excise under s 90 of the Constitution. It would be possible, of course, for the Commonwealth Parliament to reduce the Court’s jurisdiction to that extent by repealing the provision of s 30 conferring jurisdiction on the High Court in s 76(i) matters. It is, I think, unlikely to do so, because the ‘gain’ by doing so is unlikely to advance any interest of the Commonwealth.
[16] The result of the preceding discussion is that the High Court has two principal functions. First, it is the final appeal court for Australia in all matters; and secondly, it is the court in which significant constitutional matters may be commenced and disposed of. I use the expression ‘significant constitutional matters’ because the Court has power to remit to other federal or State courts matters within its jurisdiction but which involve anterior or additional questions, or matters with which the Court thinks it inappropriate to deal.[8]
[17] The High Court is also given power by the Judiciary Act 1903 (Cth) to remove to itself constitutional issues arising in other courts.[9] It has no choice but to do so if a polity in the federation, by its Attorney-General, seeks that result.[10]
[18] Whilst
its procedures will change from time to time, it is unlikely, in my view, that
the role of the High Court, as now established,
will alter significantly in the
foreseeable future. A national appellate court is a desirable institution where
so much of the law
is judge-made. It is desirable too to resolve differences of
interpretation arising between courts, or benches in the one court,
at the
present intermediate appeal court level. And in a federation, where no polity
has complete power, the existence of a final
court having the status and
security of tenure of the High Court serves the central function of defusing
constitutional issues –
so often with significant political overtones
– by submitting them for impartial adjudication at the highest
level.[11]
[20] The ambit of such ‘federal jurisdiction’ – apart from the High Court’s appellate jurisdiction under s 73 – consists of the ‘matters’ in ss 75 and 76. They are variously described, some narrowly (eg, s 76(iii)), some very broadly (eg, s 76(ii)). It is established, however, that they define exhaustively the ambit of federal jurisdiction.[12]
[21] The Constitution provides that such federal jurisdiction might be exercised by the High Court, or by other federal courts to be created by the Commonwealth Parliament, or that it might be invested in the courts of the States: see ss 71 and 77. For much of the first 100 years, the course adopted (with some exceptions, such as bankruptcy and Commonwealth industrial law) was ‘the autochthonous expedient’,[13] namely to invest federal jurisdiction in the courts of the States. It was, however, an expedient and it was inevitable that at some point the Commonwealth would move towards establishing its own system of courts. This occurred in 1976, with the establishment of the Family Court of Australia (‘Family Court’),[14] and in 1977, with the establishment of the Federal Court of Australia (‘Federal Court’).[15] These two courts, of equivalent status to the Supreme Courts of the States, had both original and appellate federal jurisdiction. Each has a large number of judges, spread throughout the Commonwealth.
[22] The Family Court’s jurisdiction, originally only in matrimonial and associated matters, has been expanded somewhat to deal with children more generally, and with some bankruptcy, administrative law and taxation matters. The Federal Court, which initially had jurisdiction only where it was conferred specifically by Commonwealth statutes, now has jurisdiction in all civil matters arising under any laws made by the Parliament, and has much of the same jurisdiction as the High Court under s 75(v).[16]
[23] A Federal Magistrates Service has recently been established.[17] Its areas of jurisdiction include family law and child support, administrative law, bankruptcy law and consumer protection law. A hierarchy of federal courts is thus developing.
[24] The courts of the States remain, but they have increased in numbers greatly in the century since federation. New South Wales, Queensland and Victoria have established permanent Courts of Appeal. All States, with the exception of Tasmania, have District or County Courts. All have Magistrates Courts or their equivalents. Many also have specialised courts at various levels. Although the range of matters dealt with by the State courts has diminished to a degree by reason of the establishment of the large federal courts, the volume of their work has increased very greatly. They remain the courts dealing with Commonwealth, as well as State, indictable offences.
[25] The self-governing territories, the Australian Capital Territory and the Northern Territory, have Supreme Courts and Magistrates Courts. Their position is essentially equivalent to that of the courts of the States. Although established pursuant to laws made by the Commonwealth under s 122 of the Constitution, they are not federal courts. ‘Territory jurisdiction’, and Territory appeals to the High Court, stand outside Chapter III.
[26] There is one striking feature of federal jurisdiction that I would mention. It is the conferral on the Federal Court of jurisdiction to review Commonwealth administrative decisions brought about by the Administrative Decisions (Judicial Review) Act 1977 (Cth). Taken with the Administrative Appeals Tribunal Act 1975 (Cth) and the Freedom of Information Act 1982 (Cth), the extent to which Commonwealth administrative decisions may be reviewed is very broad. The role of the courts in developing administrative law has been considerable.
[27] I do not think that the
roles of the courts other than the High Court will change very
significantly in the immediate future, although I expect that the influence
of
the federal courts will become greater. As federal legislation becomes more
pervasive, more matters fall within federal
jurisdiction.[18] I think
also that in time one will see federal offences being dealt with by federal
courts at all levels. It seems in a way curious
that that is not being done
already.
[29] The expression ‘judicial power of the
Commonwealth’ is found in s 71 of the
Constitution. Attempts to define the concept of judicial power exhaustively,
however, have not been successful; although it is possible to describe
the
aspects most commonly present, as in the following description from R v Trade
Practices Tribunal; Ex parte Tasmanian Breweries Pty
Ltd:
[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.[19]
[31] I suspect that attempts to define judicial power exhaustively will prove no more successful in the future then they have in the past. The courts should be careful not to expand the range of matters which of their nature attract judicial power because, as is discussed below, that means that the issue can only be dealt with judicially. On the other hand, the courts should not be averse to the notion that conferral of a jurisdiction on a court may attract judicial power simply because of the fact of such conferral. There are many occasions where the public would prefer to see issues dealt with by a court – the perception being that it will be resolved fairly, impartially, and independently of government.
[32] Fairness, impartiality and independence from the executive government are hallmarks of the judicial function. They may be seen in the development of notions of natural justice or procedural fairness; in the broad approach taken to apparent bias in judicial officers;[24] and in the readiness of the High Court to uphold the Constitution, even when to do so is not in accord with currents of popular opinion, or prevailing notions of convenience. Kable v Director of Public Prosecutions (‘Kable’)[25] and, earlier, Australian Communist Party v Commonwealth (‘Communist Party Case’)[26] are clear examples of the High Court upholding the law in the face of strong support for legislative initiatives from vocal sections of the community. More recently, the High Court, in striking down the Commonwealth-State ‘cross-vesting’ scheme in Re Wakim; Ex parte McNally (‘Re Wakim’),[27] emphatically repudiated the notion that public policy or convenience justified blurring constitutional imperatives. The invalidation of the State tobacco licensing regimes as duties of excise in Ha v New South Wales[28] is another example.
[33] It will be seen that ss 75-77 refer to the conferral of jurisdiction in terms of ‘matters’. Until Abebe v Commonwealth (‘Abebe’),[29] the view generally taken was that federal jurisdiction could not be conferred unless it was conferred in respect of the whole ‘matter’; that is, the whole legal controversy, irrespective of particular forms of procedure which might be adopted. Abebe held that jurisdiction might be conferred on a federal court with respect to part only of a ‘matter’. This is an obviously convenient result. It will allow jurisdiction to be conferred in much more flexible ways in relation to judicial power.
[34] There are several further aspects in relation to Commonwealth judicial power. One is that the only persons who may exercise that power are those to whom s 71 relates. In so far as s 71 relates to judges of federal courts, the judges must be appointed and hold office in a manner and for a term compatible with s 72. Judges of federal courts cannot be appointed for a term of, say, ten years, and there cannot be acting judges of federal courts.
[35] Secondly, federal judges may only exercise functions compatible with that office. This issue has arisen because Parliament or the executive government has sought to use judges, and the skills and expertise which judges derive from interpreting laws and documents, assessing the credibility of witnesses and the like – matters characteristic of the exercise of judicial power – by appointing individual judges to preside over various tribunals or inquiries.
[36] One
can readily understand why this course is regarded as desirable; importantly, it
gives an air of greater independence and
accountability to decision-makers. It
is necessary, however, to ensure that the function is not incompatible with
judges’ performance
of judicial functions, or with the proper discharge by
the judiciary of its responsibilities as an institution exercising judicial
power. Such incompatibility might arise in several ways, including:
(a) where
the judge is required to give such permanent or complete commitment to the
performance of non-judicial functions such as
to render his or her performance
of substantial judicial functions impracticable;
(b) where the capacity of
the judge to perform judicial functions is compromised or impaired;
(c) where the nature of the non-judicial function is such that public
confidence in the integrity of the judiciary, as an institution;
or
(d) in
the capacity of the individual judge to perform his or her judicial functions
with integrity is diminished.
[37] The last point was exemplified in Wilson v Minister for Aboriginal & Torres Strait Islander Affairs,[30] where the High Court held that a statutory power granted to the Minister to appoint a Federal Court judge to report to the Minister was not compatible with holding office as a judge under Chapter III.
[38] The concept of incompatibility has been taken further, so that States may not confer on their courts functions quite incompatible with those that might be exercised by courts in which the judicial power of the Commonwealth might be invested. This was determined in Kable, where New South Wales legislation conferred upon its Supreme Court power to make an order for the detention of a specified person on certain stipulated grounds. The making of such an order, where no breach of the criminal law had been alleged and where there was no determination of guilt, offended the incompatibility condition.[31] The possible ambit of the Kable doctrine remains to be seen. It is likely to be applicable only in rare cases, such as Kable itself, because the separation of powers doctrine deriving from Chapter III of the Constitution does not otherwise apply to the States.
[39] One further feature is that the States,
even with the consent of Commonwealth by legislation or otherwise, cannot confer
on federal
courts ‘State’ jurisdiction. This was the basis of the
decision in Re Wakim, thus bringing to an end a major part of the
‘cross-vesting’ scheme which had been in operation since
1987.
[41] From time to time, there have been suggestions that there should be an amalgamation of the State and federal superior courts, to avoid jurisdictional difficulties, but it would take great political will to do so. The opportunities for patronage presented to a polity by having its own courts are considerable. There is also much to be said for the view that provision of courts to develop and administer the laws of a polity should be a central function of government, with the government of the day bearing political responsibility for so doing.
[42] So far as the Federal
Court is concerned, there is a need, in my opinion, for the establishment of a
permanent appeal division
of that court. The Court is now too big to have
appeals dealt with by a bench of judges appointed, ad hoc, for that purpose. The
issue is sensitive, of course. There are undoubtedly strong views either
way[33] but, having
appeared many times in many appeal courts, I have no doubt that they are better
when their members are appointed permanently
for that
purpose.[34]
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